UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4828

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
DEVON TREMAINE ROSE,
Defendant Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:07-cr-00011-RLV-DCK-1)

Submitted:

June 24, 2010

Decided:

July 8, 2010

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Roderick G. Davis, THE LAW OFFICE OF RODERICK G. DAVIS, PLLC,

Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Pursuant to a written plea agreement, Devon Tremaine
Rose

pled

guilty

to

conspiracy

to

possess

with

intent

to

distribute cocaine and cocaine base in violation of 21 U.S.C.

846

(2006).

motion

for

The

district

downward

court

departure

granted

based

on

the

Governments

Roses

substantial

assistance, U.S. Sentencing Guidelines Manual 5K1.1 (2007),

and

sentenced

him

to

144

months

imprisonment.

Counsel

has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),

stating

that,

in

his

view,

there

are

no

meritorious

issues for appeal, but questioning whether the sentence imposed

was unreasonable when compared with the sentence imposed on a
similarly

situated

co-conspirator.

Rose

was

advised

of

his

right to file a pro se supplemental brief, but he has not done

so.

Finding no error, we affirm Roses conviction and sentence.

Initially, although not challenged by Rose, we find

that his guilty plea is valid.

taken

by

magistrate

Rose consented to have his plea

judge.

During

the

plea

hearing,

the

magistrate judge fully complied with the mandates of Fed. R.

Crim. P. 11 in accepting Roses guilty plea and ensured that
Rose

entered

his

plea

knowingly

and

voluntarily.

Rose

stipulated to the existence of a factual basis and agreed that

the offense conduct in the presentence report could be relied
upon

to

establish

factual

basis.
2

Accordingly,

we

affirm

Roses conviction.

See United States v. DeFusco, 949 F.2d 114,

116, 119-20 (4th Cir. 1991).

A

sentence

is

reviewed

abuse of discretion standard.

38, 51 (2007).

for

reasonableness

under

an

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendants advisory guideline range, this court must decide
whether the district court considered the 18 U.S.C. 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
Lynn, 592

and sufficiently explained the selected sentence.

F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330
(4th

Cir.

assessment

2009)
need

(holding
not

be

that,

elaborate

while
or

the

individualized

lengthy,

. . .

it

must

provide a rationale tailored to the particular case . . . and

[be] adequate to permit meaningful appellate review).

Properly

preserved claims of procedural error are subject to harmless

error review.

Lynn, 592 F.3d at 576.

If the sentence is free

of significant procedural error, the appellate court reviews the

substantive reasonableness of the sentence.

Id. at 575; United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

Rose
unreasonable

argues
because

that
the

his

district
3

sentence
court

is
did

procedurally
not

consider

 3553(a)(6)

and

the

need

to

avoid

unwarranted

disparities among similarly situated defendants.

preserved

the

issue

sentence

below

the

by

arguing

advisory

in

the

guideline

Rose properly

district
range

granting the Governments 5K1.1 motion.

sentence

court

determined

for

after

See Lynn, 592 F.3d at

577-78.
The court properly calculated the advisory guideline
range and appropriately granted the Governments motion for a
downward

departure

based

on

Roses

substantial

assistance.

Although Rose sought an additional downward departure based on

the lower sentence received by a co-conspirator with a similar
criminal history, the court denied this request, noting that
there is no disparity here to be recognized in that each case
has a plethora of facts to be considered.
The

district

court

is

not

required

tick through 3553(a)s every subsection.

Johnson,

445

F.3d

district

court

339,

must

345

place

(4th
on

Cir.

the

to

United States v.

2006).

record

robotically

an

However,

the

individualized

assessment based on the particular facts of the case before it.

This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.
Carter, 564 F.3d at 330 (internal quotation marks, footnote, and
citation omitted).

This is true even when the district court

4

sentences a defendant within the applicable guidelines range.

Id.
Here, the district court explicitly considered Roses
sole argument for a downward variancethat his sentence resulted
in an unwarranted disparity between his sentence and that of a
similarly

situated

co-conspirator.

The

court

found

that

no

disparity resulted and declined to impose a variance sentence on

this basis.
failing to

We find that any error by the district court in

provide

more

explicit

explanation

for

the

144-

month, within-guidelines sentence it imposed is harmless.

See

Lynn, 592 F.3d at 582; see also Rita v. United States, 551 U.S.
338, 359 (2007) (Where . . . the record makes clear that the
sentencing judge considered the evidence and arguments, we do
not

believe

the

extensively.).

law

requires

the

judge

to

write

more

Accordingly, we affirm Roses sentence.

As required by Anders, we have reviewed the entire

record and have found no meritorious issues for appeal.
therefore affirm Roses conviction and sentence.
requires

that

counsel

inform

his

client,

in

We

This court

writing,

of

his

right to petition the Supreme Court of the United States for

further
filed,

review.
but

frivolous,

If

counsel
then

the

client

believes

counsel

may

withdraw from representation.

requests

that

such

renew

his

that
a

petition

petition

motion

for

be

would

be

leave

to

Counsels motion must state that

5

a copy thereof was served on the client.

We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would
not aid the decisional process.

AFFIRMED